Gabor Rona on Targeted Killing at the Harvard Law School Constitution Society

Prepared Remarks:

TARGETED KILLINGS AND INTERNATIONAL LAW

In drone-operator lingo, a hit is known as a bug splat.

In Pakistan, people have taken to a sophisticated form of protest. They’ve constructed humongous photos of children, whose features are visible from high in the sky, and captioned them: “This is not a bug splat.”

TARGETED KILLING IS LEGAL

Targeted killing is not unlawful and while drones do present some unique legal and moral questions, which I’ll get to in a bit, they are not autonomous weapons. In fact, there are typically over a hundred humans in the loop of a drone attack. Drones are more-or-less merely the messenger, while the bomb, whether from a drone or a plane or a submarine, is the message.

Killing the members of enemy forces is lawful in war. Killing civilians who directly participate in hostilities is lawful in war. Outside of war, killing in self-defense or to neutralize an imminent threat to life that cannot be ameliorated through non-lethal means, such as arrest, is also lawful.

So sadly, the alternative to targeted killing isn’t no killing. It’s indiscriminate killing, and that’s a violation of human rights law and the law of armed conflict. So the “targeted” part of “targeted killing” should put those of us who pray at the altar of human rights at ease, rather than make us more nervous.

Yet, we are nervous, and for good reason, because there’s a lot that’s wrong with US targeted killing policy.

US IS FROM MARS, EUROPE IS FROM VENUS

First, I want to give you some rarely mentioned but important context. While targeted killings can occur both in and outside of war, most of what we think about when we think about the legality of targeted killing comes from our attitude about the law applicable to killing in war. And in that regard, the US is an outlier. Most of the rest of the world has rather more narrow concepts of who may be targeted, when and where, than does the US. How did it get that way?

It has everything to do with how differently the US experiences war form how the rest of the world experiences war. In most of the world where wars occur, the effects are felt not just by the armed forces. Civilian populations are not only at risk of becoming collateral damage – the unintended casualties of attacks on military objectives - they are increasingly likely to be the targets of hostilities, from genocide, as in WW II, to rape and pillage as in the DRC. But the US doesn’t have wars on its soil. Its armed forces may be at risk, but not its civilians. So in Europe, for example, the negotiation between force protection and civilian protection under the law of armed conflict favors the civilian. In the US, that negotiation favors the imperatives of force protection, at the expense of civilians. It is no accident that in the rest of the world, this body of international law, the law of war or law of armed conflict, goes by the name of International Humanitarian Law, the emphasis being on humanitarian. US armed forces, however, have long bristled at that name and prefer to refer to this body of law as LOAC – the law of armed conflict.

This is the context in which the US took liberties with the law in response to 9/11, from secret detention, to torture, to kangaroo courts in Guantanamo, and to overly broad determinations of who it may kill.

“CIVILIAN CASUALTIES”

There’s been a good bit of discussion about civilian casualties. And the administration that President Obama said would be the most transparent in history has been horribly remiss, not coming clean about the numbers. Of course, there’s also the possibility that they don’t know the numbers, but that would merely reflect an outright violation of international law. Parties to armed conflict must not only distinguish between military objectives and civilian objects, they must also take precautions to avoid civilian casualties and they must withhold attack if the collateral damage would exceed the military advantage. But I doubt that the majority of civilian casualties in targeted killings are “collateral damage,” whether proportionate to the military advantage gained by striking the intended military objective, and therefore lawful, or disproportionate, and therefore unlawful. Then what else could it be?

In armed conflict, targetability is reserved for members of enemy armed forces and civilians directly participating in hostilities. While I’m sure many civilians become unintended casualties of drone strikes – collateral damage – certainly even greater numbers are intended casualties, owing to overbroad application of killing powers. And that problem is seldom discussed.

It manifests in two forms: One, in armed conflict, using rules applicable to the targetability of combatants for the targeting of what are, in fact, civilians. For example, through the flawed assertion that persons may be targeted if they are a “member” of Al Qaeda, whatever membership in a non-State terrorist organization may mean. Second, the administration wrongly designates civilians as combatants where it asserts the rules for armed conflict even outside of armed conflict.

They do this in two respects. One, through the flawed assertion that the so-called “associated forces” of a non-State armed group like Al Qaeda may also be targeted, much like the armed forces of a non-neutral, co-belligerent may be targeted in a war between countries. That analogy between international armed conflict (war between countries) and non-international armed conflict (war involving non-State armed groups) simply doesn’t wash for much of the world, precisely because it creates too great a risk of jeopardizing civilian protection in the service of force protection.

The second thing that doesn’t wash with much of the world is the very notion of armed conflict against Al Qaeda. The ICTY set out a fairly definitive statement of what is armed conflict involving non-State actors. There are two categories of elements: 1) frequency or severity of hostilities and 2) organization of the parties. Without a threshold of frequency or severity of hostilities, any degree of organized violence could trigger the law of war, leaving policing and criminal justice obligations behind. And without the requirement of organization, hostilities would be subject to more liberal rules for killing even in the absence of identifiable parties capable of exercising rights and responsibilities under the law of war. To have war, you have to have parties. Whether you prefer to consider Al Qaeda as having been decimated, or more ominously, to have metastasized, it is more than debatable that in 2014, what we call Al Qaeda has a level of organization required to make it a party to armed conflict. And there should be little doubt that hostilities long ago fell below the threshold of frequent and/or severe. Simply put, it’s doubtful that we are at war against Al Qaeda and that we can legally avail ourselves of the more liberal rules for killing that prevail in war.

Outside of armed conflict, the “civilian/combatant” distinction does not exist. Everyone is a civilian. So what do we mean by “civilian casualties” in connection with drone strikes outside of armed conflict? Well, it seems we mean only “people we didn’t intend to kill.” That’s a woefully under-inclusive definition that effectively transposes the liberal rules for killing under the law of war to non-armed conflict contexts, where human rights law is applicable and more protective of the right to life. Without regard to whether the context is war, officials, reporters, and even some think tank analysts are perfectly happy to exclude people from the “civilian” column simply because a government official labeled the person a “terrorist,” or “militant,” or “insurgent,” or my favorite, a “bad guy.” You can be all these things, but if it ain’t armed conflict, you’re still a civilian and only targetable if your conduct poses an imminent threat to American lives that cannot be ameliorated with less than lethal means. A prime example of misuse of language that can have deadly results is in the President’s Policy Guidance on targeted killings entitled “U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” It explicitly uses the combatant/civilian distinction not only for attacks in armed conflict, but those that occur outside of war, under the rubric of self-defense. The reason I spend so much time on this detail is that it is emblematic of the administration’s confusion, and perhaps their lawyers’ deliberate obfuscation between what is and is not war. Even if we don’t take Shakespeare’s advice to “first kill all the lawyers,” we should at least demand that they get their story straight because at a minimum, people living in a democracy deserve to know who they are at war against and who is being killed in their name. So yes, let’s continue to focus on collateral damage, but let’s also recognize the possibility that many more people are dying because they’re wrongly targeted than because they are “collateral damage.”

Abuse of the law of armed conflict is not the only way in which the US violates international law. Outside of armed conflict, extrajudicial killing is prohibited unless the threat to life is imminent and the person can’t be arrested. The US has taken the position that traditional notions of imminence are passé. That given the nature of contemporary threats, we need a notion of ongoing imminence, which focuses on the degree of potential harm, rather than on its temporal quality. But this simply negates the work that the concept of imminence is doing in the equation. Drastic measures for attenuated threats not only violate human rights, but create substantial risk of mistakes and blowback. In other words, bad policy as well as bad law.

I know Prof. Goldsmith has defended US targeted killing policy on both domestic and international legal grounds. On the domestic side, he cites the AUMF, and notes that it authorizes use of force against those responsible for 9/11. Oddly though, he asserts the AUMF in reference to the killing in Yemen of Anwar Aulaqi, against whom I have never heard any accusation that he was responsible for 9/11. Prof. Goldsmith says the AUMF authorizes killing enemy soldiers who fall within the statute. Actually, I’d add that it also authorizes killing civilians who fall within the statute, but Anwar Aulaqi appears to be neither combatant not civilian, within the statute.

As concerns international law, Prof. Goldsmith makes reference to the very rules of humanitarian law and human rights law that I’ve mentioned, but treats rather superficially the fact that if it’s law of war authority we lean on, then it must first be someone affiliated with an entity with which we are, in fact, at war. The case for the US being “at war” against something called Al Qaeda in the Arab Penninsula, the entity with which Aulaqi was affiliated, is even weaker than the case for continuing war with Al Qaeda proper. Second, even if we are at war in Yemen with AQAP, what makes Aulaqi targetable under the laws of war? It cannot be simply that he’s a member, or a propagandist. He would only be targetable if he was a member of AQAP’s armed forces. The fact that it’s hard to consider AQAP, a minor terrorist organization with grand pretentions as having armed forces suggests that law of war justifications for targeting may be misplaced. Prof. Goldsmith asserts that the executive branch only targets enemy forces that fall within the parameters set by Congress in 2001, but if unless AQAP and Aulaqi are responsible for 9/11, unless the US is “at war” with AQAP, and unless Aulaqi is a member of AQAP’s armed forces, I think Prof. Goldsmith’s assertion is questionable.

If the context isn’t war, targeted killing might still be lawful as an act of self-defense. To justify this line of reasoning leading to Aulaqi’s death, Prof. Goldsmith cites the possibility that Yemen consented to the attack. But unless Aulaqi posed an imminent threat to life that could only be stopped through use of lethal force, it would be a violation for Yemen to kill him without due process of law. And Yemen cannot consent to another State’s conduct that would be a violation of Yemen’s own human rights obligations under the law. In fact, if Aulaqi had posed an imminent threat and was not susceptible to arrest, the US wouldn’t need Yemen’s consent. And Prof. Goldsmith does argue that the killing was only justified because Yemen was either unwilling or unable to suppress the threat. But this leaves out the most important two elements: the nature and imminence of the threat.

I do agree with Prof. Goldsmith that neither domestic nor international law requires anything more of the US seeking to kill its own citizen, than the citizen of another country. I also agree that ex ante judicial review of targeted killings is a lousy idea. And I agree with him that the final and arguably most fundamental check on the president’s targeted killing program is public disclosure and debate. To date, the Obama administration has made several pronouncements about its vision of applicable law, but only in the most general and conclusory terms – hardly sufficient to be the basis of informed debate. While we can’t expect – or need – the administration to consult the public on grounds for individual strikes, we can, and must expect it to make public the legal basis for its policy. To do less would amount to maintenance of secret law impinging on the most fundamental of human rights – the right to life.

UNIQUE ISSUES WITH DRONES

I mentioned earlier that drones are the messenger, not the message. But they do present some unique challenges. Supporters argue that they are more precise, owing to their ability to loiter and collect intel, and because the operator need not exercise a quick trigger finger out of fear for his personal safety. On the other hand, the distance between operator and victim has been cited as the reason for an unfolding “play-station mentality” that makes killing too easy and leads, for example, to concepts such as “bug splats.” One recent study conducted for the US armed forces suggests that the percentage of civilian casualties is higher in Pakistan, where drones are the weapon of choice, than in Afghanistan, where killing is more personal. But the most pernicious aspect of drones, is, ironically, in the abject terror that they create among civilians who live under them. A recent Rolling Stone article chronicles this experience in Yemen.

POLICY

It should be no surprise that as a result of aggressive legal interpretations, we are risking creating two more terrorists for each one we neutralize through targeted killings gone astray. General McCrystal and General Petreus, neither one a shrinking human rights violet, have both expressed such concerns.

PRECEDENT

What precedents are we setting? We do not have a monopoly on drone technology. What we sow in Afghanistan, Somalia, Yemen and Mali will be reaped by the victims of North Korea, Iran, Russia, Hezbollah and other aggressive State and non-State actors.

US AS HUMAN RIGHTS STANDARD BEARER

What are we doing to our reputation as a standard-bearer for human rights? Our post-9/11 military adventurism in Iraq, our misadventures in torture and black sites and our failure to hold their architects accountable, our persistence with fatally flawed military commissions, and our failure to obey applicable international law in our targeting practices, whether in or outside of armed conflict, have all had their repercussions. The United States has had to muffle its voice in the face of human rights violations by others for fear of being branded a hypocrite. Our practices are cited as justification for what we used to call torture, arbitrary detention, enforced disappearances and extrajudicial killings when others committed them, but we now hesitate to call those things by their true name.

To aid in the implementation of policies and practices that respect the rule of law, to restore America’s reputation as an honest broker for human rights, and indeed, to improve the prospects for reducing the terrorist threat, the United States must break with its stubborn insistence on aggressive interpretations of law designed to eliminate threats that can be managed, but not eliminated. To do otherwise will simply result in tears all around.